Ignorant NY Times Reporter Argues That The Public Domain Is Damaging Film

from the say-what-now? dept

In January, I wrote up an article that discusses the importance of the public domain -- something we've covered many times before. Without repeating various discussions we've had many times before, there is overwhelming evidence that a healthy public domain is important to both preserving old culture and developing new culture. But you wouldn't know that at all if you happened upon a recent, bizarre and totally misleading (to the point of being downright ignorant) article in the NY Times written by Nicolas Rapold, which is based on the entire premise that the public domain has somehow destroyed old films. Even the title makes no sense, claiming that "Even Good Films May Go to Purgatory," in which "purgatory" is the public domain. That's kind of hilariously wrong. In fact, it's much more reasonable to argue that it's copyright that creates a true purgatory for creative works.

Professor Paul Heald's ongoing research about the public domain has shown multiple times that excessive copyright is making creative works effectively vanish, while ancient public domain works are much more widely available. Take a look at the following chart, for example, highlighting how new books available on Amazon show a massive dip until you hit 1923 -- an important year, because works published before that year are mostly in the public domain:

Seriously: which seems more like purgatory? All those works from the 1930s through the 1990s that are no longer available at all? Or the public domain?

But that's just the beginning of the problems in the article, which keeps going back to its basic premise that the public domain is bad, as if that's a simple fact. The entire crux of the article seems to be based on the fact that because some works are in the public domain, it means that lower quality video exists of those works. It bemoans various famous works that fell into the public domain, simply assuring all readers that this is a horrible fate that should never be allowed to happen to our culture.

The whole thing is based on the false belief -- which Rapold seems to accept without question -- that without copyright, there is no incentive for anyone to "restore" or keep a pristine copy of a work. This is the myth -- often pushed by copyright maximalists -- that public domain works are somehow "underused." Except that actual empirical research by Christopher Buccafusco and Paul Heald explored this assumption and found no support for that argument. In one experiment, they tested and compared audiobooks of public domain books vs. books still under copyright and found that -- as in other similar studies -- there is no evidence that public domain works lead to under use:

Lack of availability has been the most prominent concern expressed by Congress and commentators about works falling into the public domain. If works tended to disappear when their copyright terms expired, a plausible argument could be made for term extension because these lost works would be unavailable for future readers, users, and creators. Consistent with several previous studies,92 however, we found that audio books were significantly more likely to be made from older bestselling public domain works than from bestselling copyrighted works from the same era. Even excluding audiobooks available for free at www.librivox.org, the public domain works were more available to consumers in audio book form. For the full sample, public domain works were twice as likely to be available, and for the sample of enduringly popular works, public domain titles were 20% more likely to be available. These data suggest that copyright status, in fact, seems to reduce availability, even for the most popular books. Even today, there are no unabridged audio recordings for three of the most popular novels of the 1930’s, Magnificent Obsession by Lloyd Douglas, Mutiny on the Bounty by Nordoff and Hall, and Death Comes for the Archbishop by Willa Cather, and D.H. Lawrence’s Lady Chatterley’s Lover (1930) did not appear as an unabridged audio book until 2011.

And while Rapold does highlight that certain old films that are in the public domain have degraded versions now available, he appears to simply assume the reason is that they've fallen into the public domain. He makes no effort whatsoever to prove the two are connected. Of course, it's actually not that difficult to discover works under copyright where the masters have similarly degraded and are disappearing in part because no one can have a copy to preserve it. Just a few years ago, we wrote about some important historical film archives that were literally being eaten away by fungus.

Part of the reason that many old works are degraded has little to do with its copyright status, and much more to do with the fact that the original copies were poorly cared for -- and, at the time, there was little way for others to make copies and preserve them. That, of course, is now changing, since so many people can help in the preservation process. A robust public domain, combined with inexpensive (or free) tools to allow anyone to preserve works, would easily lead to much higher quality preservation. Yes, there will be some poor quality copies out there, but just because some exist, it doesn't mean that good quality copies won't also be preserved.

Rapold's ignorance on the subject is especially problematic given that we're about to face a big debate in Congress on the issue of copyright term extension. As we've noted plenty of times, the big copyright legacy players have spent decades making sure no new works will ever enter the public domain by continually pushing out the supposedly "limited" copyright term. We're rapidly approaching the next deadline and there will be a massive lobbying campaign claiming that if works from 1923 are allowed into the public domain, all sorts of horrors will happen in response. Ridiculous and flat out wrong articles like Rapold's will be used to support that position, despite the fact that all of the empirical evidence suggests that argument is simply not true.

That the NY Times would publish such a piece highlights, yet again, how the famed newspaper so frequently appears to have little actual knowledge of the subjects it covers, often being a useful propaganda engine for certain special interests who can "place" a bogus story in a way that can have an impact on policies.

Reader Comments

Decent concern, wrong target

If they're truly worried about works 'disappearing', then their top priority should be fixing the Orphan Works problem. Low quality recordings are rather overshadowed by no recordings of a work because no-one knows who owns the rights to it, making saving, backing it up, or restoring it legally dicey.

Wouldn't even be a difficult fix either, just bring back the registration requirement to get a work protected by copyright law, and for current orphaned works, give a grace period, say 5 years, for the owner to come forward and claim them, releasing into the public domain any works that remain unclaimed at the end of the 5 years.

The media industries generally argue that they need to push for longer copyright terms to obtain the needed benefit from *those* works. By looking at those charts you could think that maybe they realise how copyright reduces demand for works, and are doing that on purpose to create an artificial scarcity of not-too-old works to push people to buy the latest releases.

Of course, this doesn't make much economic sense either, but that has never been their strong point..

From the article

Quote from the linked article

They show up in discount DVD bins, or more often today online, sometimes looking a little worse for the wear. A general pall of darkness might cloud the image; the dialogue might be a bit tinnier than you remembered.

Re: From the article

That. There are tons of content decaying, rotting in the studio vaults, locked behind eternal copyrights and the culprit is the Public Domain which original intent is precisely to make them public s they can 1- be freely distributed and 2- freely built on top to keep it alive.. Very appropriate blame placing ;)

Re: Re: Re: From the article

Re: From the article

Not to mention - that has absolutely nothing to do with PD status, only with whether people have put in the money to remaster the original prints. There's shoddy prints of older non-PD movies too, and even those that aren't shoddy also show up in discount bins.

Another possibility...

"That the NY Times would publish such a piece highlights, yet again, how the famed newspaper so frequently appears to have little actual knowledge of the subjects it covers, often being a useful propaganda engine for certain special interests who can "place" a bogus story in a way that can have an impact on policies."

...OR the NY Times knows exactly what it's doing and siding with copyright maximalists :(

And you know this to be true...how?

He may be wrong about this subject, but I din't think that he's what you said he is.

The real culprit is the big media companies/original owners who used to own these PD works in the first place and just left them to die off with nary a care in the world. If they really cared about them as this guy insinuates that they would, then they would have been kept in better condition, but guess what? They weren't, and so they reside in the PD.

There's a lot of old TV shows that I wish were PD, one of them being a certain lost classic show from 1963 called East Side/West Side that starred George C. Scott; current rights holder MGM isn't doing anything with it besides having a desultory basic web page that lists cast, crew and pictures. PD would be the best way to see these shows without any bullshit on the part of Big Media.

Re: And you know this to be true...how?

Not to mention BBCs lost tapes during the 50's to 70's. Blaming the loss of content on public domain is unfortunate seeing as it isn't even close to the only culprit, the most likely or obvious even. This guy is clearly throwing around praise or disgust to named companies and organisations. That on its own is a red flag for people who might want to use it politically.

Removing "public domain" is not going to change anything for these works. The works were caught in a time where publishing was difficult and expensive and that is the reason for their ruin!

I guess his argument is that the works won't get restored because nobody has an economic incentive to do so if they cannot keep people from copying their restored work. But then he points to people who do. The problem he highlights is incentivising restoration/reformatting/saving. The only way to avoid "public domain" is for copyright to be eternal or the work to be unavailable. Eternal copyright is, however, a very problematic idea giving rise to concepts like copyright stock exchanges, redistribution to specific families/companies (reverse Robin Hood), dilution of art (More oversaturation, fierce competition on owning promotion platforms and a lower incentive for the original author on account of the gamble the people he sells his copyright to takes - the variance increase for the investor, not the immediate value that the author gets a share of whether in flat, wage, netto sale or gross sale!), eternal production of series based on the same characters, made by the same production companies/copyright owners etc.Few people can see the value in those ends... 70 years post mortem is already far too long for the economic interest of the creator. Increasing that number screw the actual creator on account of it being post-mortem!

Re: Re: And you know this to be true...how?

The only reason some episodes of early Doctor Who even exist is because fans ignored copyright & recorded the audio, video or both & kept them. Now, the BBC is trying to track these recordings down, so they can finally release the full stories on DVD. Some parts have to be animated, because the video was lost.

The problem with film is that there aren't enough works in the public domain to sustain a film restoration business.

This leaves it up to the studios to restore the films themselves, but there's aren't a lot of pre-1950 films that can be profitably restored, so most of them sit in the corporate vaults hidden from view.

One fix might be mandating that digital copies of all pre-1950 prints be made available to the public within 10 years, or else they're turned over to the government (and hence the public domain) so that the Library of Congress can make them available.

This would give the studios a chance to purge their libraries without corroding their precious copyright, and make every film in their vault available to everyone.

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Another factor is that getting an all-clear on public domain can get messy because of multiple overlapping copyrights: e.g., copyrighted movie based on a copyrighted screenplay based on a copyrighted novel based on a copyrighted poem.

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If the music is specifically written and recorded for the film, it's part of the larger work and the copyright is owned by the owner of the film.

Yes, but sometimes they use existing music, licensed for the film. The problem is that at the time many of these movies were made, there wasn't any home video market to plan for. Even after the advent of home video, many movies and shows got tied up in legal red tape over the music.

You can't buy DVD copies of a lot of older shows like WKRP in Cincinnati or 21 Jumpstreet with their original music because the studios didn't want to spend the money and time it would take to work out licensing deals for all of the music. The Fox show Werewolf was reportedly all set to be released by one company, but at the last minute, they couldn't clear the rights to two songs and since Fox no longer had separate voice and music tracks, there was no way for them to replace the music. So the whole project was scrapped.

The movie Heavy Metal came out in 1981, but there wasn't a home video release until 1996. Bootlegs made from pay cable channels were available under the table, but music licensing held up the official release for a full fifteen years.

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The problem with film is that there aren't enough works in the public domain to sustain a film restoration business.

Here's an idea I had a while back, and kicked around in my head for a while: Crowdfund it.

Set up a site, like Kickstarter, where the various studios list older movies that aren't currently in digital format, along with the cost it would take to restore and digitize them. Should enough people donate to a particular film, it's restored, digitized, and made available to be purchased, with the backers getting copies due to already 'paying'.

A setup like this would allow the studios to have a zero-risk way of digitizing older works, since as long as it makes the goal, even if no one but the backers was interested in buying it, they'll still have broken even. If not enough backers donate for a film, it indicates that there's not enough interest.

Of course such a system would require the studios to be willing to compete against their older films, and would actually be good for the public, so the odds of anything like this actually happening is probably zero to none.

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You can already donate to film preservation non-profits, but again they're largely limited to restoring public domain films, and only a handful of pubic domain films are famous enough to be profitable (and I suspect meager profits at best).

let's be honest here, eh? if you've got the brain of an idiot, only idiot comments come out! if he truly wanted to show that being in the Public Domain screwed up films, he would get indisputable proof. he cant do that, so he just needs to keep quiet. while he is doing that, he can think of the numbers of films we have lost because they are NOT in the public domain, not able to be copied for any sake let alone preservation's and like so many others, they will be lost forever. the thanks for that goes fairly and squarely to the entertainment industries and nowhere else! their short sighted views and opinions have done a lot more harm than we have been prithee to know!!

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out of the mouth of babes !

long, long ago (plus 75 years), there was a concept known as the 'public good', crazy, isn't it ? ? ?

but we are much more advanceder now, (the Most CIVILIZEDEST Evah!), so we don't need useless stuff like 'public commonwealth' and such, private enterprise is obviously so much more superior in outcome for us rubes...

Odd, I have a distinct impression that it is the public domain that is endangered. After all, nothing I view in my lifetime, locked up by copyright will ever become public domain. In essence this means under today's copyright lengths it is eternal for anything I might wish to use ever entering public domain.

But lets go a little further. DRM is a watchdog that will never go off duty. So even when some work enters public domain, the DRM will continue to prevent access to a public work after it enters along with criminal intent to break DRM to access it.

Nor is there any requirement that any copyright holder preserve a copy of those works it holds under copyright in pristine condition for the day it does enter public domain. Economics says you store only money makers in your environmentally shielded vaults meaning that long before some work enters public domain it will most likely and in all probability be degraded to the point of uselessness.

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Exactly the reason that I've been downloading and archiving any TV show that looks remotely interesting to me. Already I have a couple shows that only lasted one season and haven't been released on DVD.

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Nor is there any requirement that any copyright holder preserve a copy of those works it holds under copyright in pristine condition for the day it does enter public domain.

Of course there used to be - in the days when registration was required - a requirement to lodge a copy of any registered book with the so called "Copyright Libraries " ("Copyright in this case meaning that they had the right to a copy!). In the UK this mean the British (Museum) Library and the Libraries of certain universities. In the US I believe it meant the Library of Congress. That at least meant somebody responsible had a copy and could preserve it.

No this guy is right... it's not like we've got a giant interconnected (for a lack of better word) "web" of billions of people with lots of space to spare and willing to spread, restore and hold those works for free.... oh wait.

point of contention

WHO here knows what happened to the series of Doctor WHO?Doctor WHO started in late 60's black and white, BBC..the USA even tried to buy/copy it..

the BBC tried to make a compilation of all the shows..MISSING over 1/2 of them to TIME and destruction of tapes.they SEARCHED the world for copies..

NOW to the VAULTS in the USA..where the movie industry keeps all those OLD FILMS on media that was original in 1930-40-50...NEVER upgraded to any other form/format/or new media copy. ALL that OLD TAPE/FILM ROTTING..NO changes, no upgrades, NO fixing the faded colors or rotting tape/film..

This group gathers/buys/collects the OLD movies and Fixes them, as much as they can..this is like going out to the DUMP and finding stuff to take home and FIX..missing parts, Rotten wood, and so forth.THEY TRY HARD.

Where is the movie industry in this??

Re: point of contention

the BBC tried to make a compilation of all the shows..MISSING over 1/2 of them to TIME and destruction of tapes.they SEARCHED the world for copies..

Actually the BBC wasn't being particularly careless here. At no time did anyone knowingly wipe a tape that they believed to be the only copy. The problem was that there were two subsections of the BBC involved and each one thought that the other one was keeping the reference copy.

Actually this is worse because it points out that even when rightsholders are trying to keep things they are still likely to fail.

and btw Dr WHo started in 1963 - not late 60's. In fact the first episode was broadcast on the day that John Kennedy was assassinated!

Re: Re: point of contention

We have Poe' Law , for mentions of Hitler/nazis. I believe it must be time for a Dr Who law - that in any discussion of the public domain or home taping someone is guaranteed to bring up the lost Dr Who episodes.

Re: Re: Re: point of contention

No. Apart from the fact that's you're saying this on a reply to a 2 year old comment (thus making your observation that you're hearing the argument too much 2 years later irrelevant), there's no comparison between the two.

The Poe argument is that the Nazis always get mentioned, no matter what the original argument started off being about. I've never seen the Dr Who reference made anywhere outside of a discussion of a subject that's directly relevant (such as here, where copyright is still an issue that affects the Who archives even if it wasn't necessarily responsible for the destruction of episodes initially).

I have a better law to name - people who come in complaining about what someone said years ago in a comment, without offering any new insight that might have been gained over the intervening years.

Re: Re: Re: Re: Re: point of contention

How about a law for people who start swearing and name-calling like a toddler whenever they're questioned? No wonder you people hide your identities, you must realise how pathetic and embarrassing that kind of behaviour is for what I presume is an adult.

"who will reply to anything if it makes him feel that he comes out of it looking super smart"

I'll reply to anything in my email feed that interests me. If you dislike this, perhaps refrain from making comments in a public forum.

"to be fair, I got here from the recent comments feed, much like yourself I presume"

I responded to a new comment with an observation solely about only the new info. You responded to a 2 year old comment with nothing to say except whine that in 2016 you are hearing too many comments like the one made in 2014. There's a slight difference.

Movies and sound recordings

There is the problem that movies that are on film and sound recordings (that are on wax, celluloid, shellack, vinyl, or magnetic tape) have that books, photographs, and sheet music do not have. And that is that listening and/or watching them destroy the medium they are stored on even in normal operation. It does not help that most movies were leased to theaters instead of sold.

The article itself mentions various public domain films that have been restored by the likes of the BFI, LoC, Criterion, etc., restorations that they never got during the decades they were covered by copyright. No one would even know these films existed if they hadn't entered the public domain, certainly there would not be enough demand for them to drive the restoration efforts.

Failure to even mention the vast loss of orphan works pushes this article beyond simple "ignorance".

Public Domain and Sales

Most works, even bestsellers, hits, etc., have a limited time period when they make 99% of their lifetime sales. So the creators will need to produce a new work to provide new sales. As a thought experiment, for the year 2004 how many people will buy a copy of the top grossing movie for that year this year (Shrek 2). Most of the sales have already occurred so if it want into the public domain this year Dreamworks would probably not miss many sales. It is unlikely that there are enough sales to justify another pressing of the DVD.

Another point that is overlooked, most people want to buy a reputable copy of the work. So even a work in public domain reputable copies will still sell. A reputable copy is one made from the original masters for a film or recording or accurate reprinting of a book. Often the original producers or publishers are in the best position to reissue reputable copies of an older work.

Along these lines, if one wants a good copy of the movie Casablanca one is likely to buy a copy quite possibly made by the studio.

You know the old adage "never attribute to malice that which is adequately explained by stupidity"? I think an appropriate addendum would be "never attribute to ignorance that which is adequately explained as paid rhetoric."

If the copyright hadn't expired long long long after the majority of people are interested, those works might be getting a great deal more attention. How many people who saw them in the theater are still alive today?

This is just the Big Lie.

The whole thing is based on the false belief -- which Rapold seems to accept without question -- that without copyright, there is no incentive for anyone to "restore" or keep a pristine copy of a work.

If you repeat a lie often enough, people will start to believe it.

What they are doing in implying that "the public domain" is destroying works is that they are deflecting attention away from the fact that so many films ARE rotting away in their vaults, unavailable and unused, and that they have absolutely no intention of ever restoring them. "Don't look at that man behind the curtain!"

Too bad that copyright doesn't have a clause like trademark, where the manufacturer is forced to offer the work for sale or lose the trademark. In the real world, this usually means that the manufacturer makes one production run of the product a year and sells the tiny amount in some third world country. But in the digital age, that could be modified to make it be offered to ALL who wish to buy it at a price in line with the prices of their other offerings.

Re: This is just the Big Lie.

Copyright should also have a clause where after a certain initial period, the copyright owner has to renew the copyright each year for an escalating fee. It would start small, but increase rapidly until the point where it simply wouldn't be possible for a big studio to renew the copyright on everything it owns. They would be forced to decide which works truly have value to them, and let go of the less profitable ones.

Re: This is just the Big Lie.

If they can dupe clueless politicians into providing a better and longer copyright by putting a ransom on their old works and threaten to let them decay if their demands aren't met, we have a hostage situation!

Besides, you are arguing for a further protection of the most economically viable pieces of art (Those the studios will pay for keeping copyrighted). They are getting out either way. No, the real problem is the niche productions. Those with a small audience. Copyright based on economic incentives is never going to help those either way!

Well it IS the New York Times. Their slant is incredibly obvious. Especially when you read their older articles (like 20-50 years ago) versus now. They have the most incredulous sense of self-righteousness that it's hard to even understand how they're still in print. Just Google "New York Times declares itself" and take a look at the long list of absurd things it writes. It sounds like a newspaper that has lost its mind. There is no rhyme nor reason for the deranged editorials it publishes and even articles it says are fact when they're not.